Response to the Speluncean Explorers
My brother Foster said a good deal about justifiable sacrifices, connecting the ten construction workers killed in the rescue to the one who was killed to feed the others. I was surprised, then, that he did not mention the sacrificial nature of the trial itself. The four explorers are about to suffer the death penalty to preserve the integrity of the murder law. Should the state use people in this way? I think not, but I am morally opposed to the death penalty if secure life imprisonment is possible, so I would have had to recuse myself from this case regardless.
Tatting’s tortuous recusal and the various theoretical arguments displayed during the decision show me the danger of stare decisis. Because the decisions of these judges will become precedent for future cases which they will not control, they are reluctant to show mercy in any circumstances. This occurred in the Cabin Boy case, in which the jury convicted the sailors due to the “slippery slope” argument that an acquittal would open the door to more egregious exceptions in the future. Perhaps we should waive a case such as the Explorers, in which the judges’ inclinations to mercy are so strongly attached to the particular circumstances, from theoretical consideration for future courts. Handy’s opinion seems the closest to this action.
Even if the death penalty were not a factor, I would acquit the defendants. A “temporary insanity” plea is possible based on their extreme hunger, but chiefly, I am sympathetic to Foster’s exception for extreme necessity. Tatting cites Commonwealth v. Valjean as evidence against this view, but in my reading of Les Miserables, this case was meant to demonstrate the terrible inflexibility of the legal system embodied by Inspector Javert, not the sagacity of the court.